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Sustained Outrage

The Charleston Gazette has a long and proud tradition as a crusading newspaper. Our late publisher, W.E. "Ned" Chilton III coined the phrase "sustained outrage" and insisted the Gazette live up to that motto with long-term coverage of important issues facing West Virginia and the nation.

The mission of the "Gazette Watchdog" is simple: To carry on that tradition. We make a commitment to our readers to serve as a public watchdog over government, business, and other powerful entities in West Virginia society, to ensure that the public interest is protected.

Late last week I obtained a large file of documents concerning the death of Benjamin Hill, whose mysterious death at the Industrial Home for Youth prompted a West Virginia Supreme Court inquiry into the state Division of Juvenile Services.

In my story today, I write about how the documents suggest that Hill may have died of an overdose of an antidepressant he was prescribed.

Below is a look at the documents mentioned in the story. Click on the notes in the left-hand column to read about the notations. You can scroll to the bottom and click on a much larger (and therefore legible) pdf file of the documents.

In addition, prisons account for most of the increase between 2005 and 2008. Allegations in state prisons increased by 20 percent, while allegations in federal prisons jumped 37 percent (although the federal prison population is much, much smaller).

Of course, there’s a big difference between an allegation and a substantiated rape or assault. While the overall number of substantiated allegations has remained pretty steady, increasing by 5 percent between 2005 and 2008, the number of verified claims in prisons — state and federal — has grown by 24 percent over the same period. In 2008, 12.5 percent of all total allegations were substantiated, or one in eight.

Of the substantiated incidents, 54 percent were inmate-on-inmate, while 46 percent were staff-on-inmate. Of the verified inmate-on-inmate complaints, roughly 12 percent involved two or more assailants. This was more likely to be the case in jails (14 percent) than in prisons (nine percent).

Not surprisingly, women represented a disproportionately large percentage of victims. Women make up only seven percent of the prison population, yet they represented 21 percent of the victims of inmate-on-inmate incidents and 32 percent of the victims in staff-on-inmate offenses in prisons. Similarly, only 13 percent of jail inmates are women, but they were the victims in 32 percent of the inmate-on-inmate and 56 percent of the staff-on-inmate abuses in jails.

Earlier this week, a New York Times editorial headlined “The Crime of Punishment” assailed the widespread overcrowding of American prisons. With the U.S. Supreme Court to take up an earlier ruling that overcrowding in California’s prisons is the “primary cause” of what the editorial called “gruesome inadequacies in medical and mental health care” for prisoners, the Times urged the justices to uphold the lower court’s decision.

In 2005, when a federal court took a snapshot of California’s prisons, one inmate was dying each week because the state failed to provide adequate health care. Adequate does not mean state-of-the-art, or even tolerable. It means care meeting “the minimal civilized measure of life’s necessities,” in the Supreme Court’s words, so inmates do not die from rampant staph infections or commit suicide at nearly twice the national average.

The editorial continues:

Four years ago, when the number of inmates in California reached more than 160,000, Gov. Arnold Schwarzenegger declared a “state of emergency.” The state’s prisons, he said, are places “of extreme peril.”

Last year, under a federal law focusing on prison conditions, the lower court found that overcrowding was the “primary cause” of gruesome inadequacies in medical and mental health care. The court concluded that the only relief under the law “capable of remedying these constitutional deficiencies” is a “prison release order.”

Today, there are almost twice as many inmates in California’s 33 prisons as they were designed for. The court ordered the state to reduce that population by around 30 percent. While still leaving it overcrowded, that would free up space, staff and other vital resources for long overdue medical and mental health clinics.

Finally, the Times’s editorial board concluded:

Among experts, as a forthcoming issue of the journal Criminology & Public Policy relates, there is a growing belief that less prison and more and better policing will reduce crime. There is almost unanimous condemnation of California-style mass incarceration, which has led to no reduction in serious crime and has turned many inmates into habitual criminals.

America’s prison system is now studied largely because of its failure — the result of an expensive approach to criminal justice shaped by fear-driven ideology. California’s prisons embody this overwhelming failure.

In 1992, the story goes, Democratic strategist James Carville, in an attempt to keep presidential candidate Bill Clinton on message, boiled down a major campaign issue to four words: “It’s the economy, stupid.”

I couldn’t help but think of that phrase as I read through a new report from the Pew Center on the States, Collateral Costs: Incarceration’s Effect on Economic Mobility, which was released today. The report, based on research by Harvard University professor Bruce Western and University of Washington professor Becky Pettit, documents the devastating impact of prison not just on the economic prospects of inmates, but also on those of their children. And it gives another reason why lawmakers and judges — all of us, really — should make every effort to keep as many people out of prison as possible: It’s the economy, well, you get it.

Some of the figures cited are pretty jaw-dropping. Let’s start with earning potential for convicts released from prison:

Former inmates experience relatively high levels of unemployment and below-average earnings in large part because of their comparatively poor work history and low levels of education. Incarceration further compounds these challenges. When age, education, school enrollment, region of residence and urban residence are statistically accounted for, past incarceration reduced subsequent wages by 11 percent, cut annual employment by nine weeks and reduced yearly earnings by 40 percent.

Prison also makes it harder to move up the economic ladder, the study found.

Put simply, men imprisoned and released between 1986 and 2006 were significantly less upwardly mobile than those who did not spend time behind bars. Typically, one would expect maturity, hard work and experience to gradually produce promotions and bigger paychecks. However, in both relative and absolute terms, those who had been convicted of crimes and incarcerated in this time period had much less success in getting ahead.

It’s election season, which means we’re likely to hear a fair amount of “tough on crime” talk from candidates trying to shore up their law-and-order credentials. But what do voters really think about crime and punishment?

A new study by the Pew Center on the States looked at that question, and came away with some interesting results. People want to keep their communities safe, and want criminals held accountable for illegal activities, the study noted. Makes sense. But it’s the third takeaway from the polling that really bears repeating:

Voters believe a strong public safety system is possible while reducing the size and cost of the prison system.

Here are some underlying attitudes that the study identified:

• Crime is a low concern; only 2 percent of voters rate crime or drugs/alcohol as the most important problem facing their state.

• Voters want offenders held accountable for their actions, especially by ensuring they pay child support (79 percent cite as a high priority) and restitution to their victims (72 percent).

• Most voters feel safe in their communities, but 42 percent believe (mistakenly) that violent crime is up nationally.

• There are big perceptual differences in the way people approach violent and nonviolent offenders. From a series of focus groups we learned there is often considerable empathy expressed for nonviolent offenders and their life circumstances. Participants look for punishments that do not include prison, opting for community service or other punishments. Substance abuse treatment and job training are often considered appropriate.

And here’s a graph (admittedly for a longer time frame, 2000 to 2009) of the prison population in America, from the Bureau of Justice Statistics:

It is encouraging that the prison population in America is growing at a much slower rate. But it is still growing, which goes against the fact that violent crime is down. For that matter, property crimes are down too, according to the FBI.

It’s understandable that there might be a slight lag until the prison population begins to reflect the decreasing number of crimes committed. But really, why aren’t there fewer people in prison if there are fewer crimes being committed?

And when the numbers are broken down, the results are pretty eye-popping: while the percentage of whites below the poverty line increased from 8.6 to 9.4, for blacks it went from 24.7 to 25.8, and for Hispanics it jumped from 23.2 to 25.3. Let’s think about that: one out of every four black and Hispanic Americans lives in poverty.

For children below the age of 18, the numbers jumped by almost 1.4 million in the last year, from just over 14 million in 2008 (or 19.0 percent) to 15.45 million in 2009 (or 20.7 percent). One in five American children lives in poverty.

And if these numbers weren’t upsetting enough on their own, the Justice Policy Institute just published this study that makes the connection between those facing economic hardship and those who end up incarcerated.

Poverty does not create crime, nor is limited wealth and income necessarily a predictor of involvement in the justice system; however, people with the fewest financial resources are more likely to end up in prison or jail. And the effects of an economic crisis like the one we are now experiencing are magnified for people with less income and wealth.

For this reason, the Justice Policy Institute chose to explore the connection between poverty and incarceration. Crime is down across the country, yet arrests and prison populations continue to increase, and disproportionately impact low-income communities and communities of color.

Sometimes, covering crime and courts, the media gets so focused on a particular case that we forget to take a step back and look at the bigger picture. Thankfully, reports like this study from the Bureau of Justice Statistics provide a compelling snapshot of how felonies work their way through the justice system.

The report, Felony Defendants in Large Urban Counties, 2006, looked at the 58,100 felony cases initiated in May 2006. Here are some of the key findings:

— Since 1990, violent crimes have inched downward, from 27 percent of felonies to 23 percent in 2006. The percentage charged with drug crimes have gone up, from 34 percent in 1990 (with a quick dip to 30 percent in 1992) to 37 percent in 2006. Property crimes have also gone down, from a high of 35 percent in 1994 to 29 percent in 2006.

— Defendants seem to be getting older. In 1990, only 10 percent of defendants were 40 or older, and that has risen steadily to 25 percent in 2006. The percentage of defendants under 25 has decreased, from 40 percent in 1990 to 33 percent in 2006.

— More defendants have criminal histories and convictions. In 1992, 55 percent of defendants had a previous felony arrest, compared with 64 percent in 2006. Those with prior felony convictions rose from 36 percent in 1990 to 43 percent in 2006.

— Almost one in three of the defendants charged, 31 percent, were already involved with the criminal justice system, either by being in custody, awaiting trial, or on probation or parole, when they were arrested on the new offense.

— Roughly three out of five defendants charged were released before the case was resolved. Of those, 33 percent engaged in some sort of pretrial misconduct. People facing drug offenses were more likely to have issues during their release (37 percent) than those with pending violent felony charges (26 percent).

The study also looked at typical outcomes for 100 defendants facing charges. Of those, 42 would remain in custody pending trial, while 58 would be released. Eight typically enter into a pretrial diversion with prosecutors, 23 have their cases dismissed, and 69 are prosecuted. Of those 69, four typically go to trial and 65 plead guilty. Of the trials, three result in convictions, and one ends in an acquittal. Of the 68 defendants who are convicted, 56 end in felony convictions, with 11 resulting in misdemeanor convictions. Two dozen will be sentenced to prison, two dozen sentenced to jail, 17 put on probation, and three have other sentences.

Let’s think about that: 95 percent of the convictions come from guilty pleas. Of those people who were convicted, 72 percent were convicted on the original charge for which they were arrested. Seven out of 10 of those convicted ended up incarcerated, either in prison or jail.

Remember, the study only looked at the 75 biggest counties in America, which naturally include some pretty big cities. At 191,000 people, West Virginia’s biggest county, Kanawha, doesn’t even come close. (El Paso County, Texas, is #75, and it has 750,000 residents.) But it still provides an interesting window into how felony cases are handled.

So, what kind of offenses were most likely to end in conviction? The answer may surprise you.

This month, the commission published the results of a survey of federal judges it conducted between January and March of this year. So, how do the group of people tasked with deciding how much time convicted offenders spend behind bars feel about the sentences they hand out?

Well, the answers may surprise you.

When asked if the mandatory minimum sentences associated with various offenses were appropriate, a solid majority of 62 percent said that they are two high in general. When asked about minimums associated with specific crimes, most judges said they were appropriate, with three notable exceptions: For drug trafficking crack cocaine, 76 percent said the minimums are too high. For marijuana crimes, 54 percent said they were too high. And for receiving child pornography, 71 percent of judges surveyed answered that the minimum sentences are too high. This was not the case for production (only 23 percent said too high) or distribution (37 percent) of child pornography.

These results were echoed when the judges were asked about the appropriateness of the ranges suggested by the federal guidelines, which the U.S. Supreme Court ruled are advisory in important opinions in Kimbrough and Gall.

States that spend more money on education and housing see positive results in reducing crime rates, according to the study, whereas locking more people up doesn’t necessarily correspond with a reduction in crime:

Shifting public dollars away from prisons and towards positive investments in people doesn’t involve a public safety “trade-off.” Research shows that states that spend more on education have lower crime rates than states that spend less. And more funding for housing also correlates with lower incarceration rates. Having a job has also been shown to be one of the largest predictors both staying out of prison and of success for people re-entering the community from prison. With the money saved on prisons, states can maintain or expand education, housing, employment training, and cost-effective services for both youth and adults. In this way, policymakers can maintain safe communities today, while building stronger communities for the future.

Here are some suggestions from the JPI on how to approach the task of paroling more inmates without increasing the threat the public (and keep in mind, these are just the broad topics; the study goes into more depth):

— Utilize risk assessments

— Reduce administrative delays in parole

— Increase access to in-prison programming

— Establish medical parole

— Consider parole for aging people in prison

— Institute better “good time” policies

— Implement or expand work release or community corrections

And here’s perhaps the most obvious (but most important) idea in the whole study: “People need support after release to be successful in the community.”

Substance-involved people have come to compose a large portion of the prison population. Substance use may play a role in the commission of certain crimes: approximately 16 percent of people in state prison and 18 percent of people in federal prison reported committing their crimes to obtain money for drugs. Treatment delivered in the community is one of the most cost-effective ways to prevent such crimes and costs approximately $20,000 less than incarceration per person per year. A study by the Washington State Institute for Public Policy found that every dollar spent on drug treatment in the community yields over $18 in cost savings related to crime. In comparison, prisons only yield $.37 in public safety benefit per dollar spent. Releasing people to supervision and making treatment accessible is an effective way of reducing problematic drug use, reducing crime associated with drug use and reducing the number of people in prison.

There was an interesting study published this month by the Center for Economic and Policy Research that suggested that if the United States were to release half of the non-violent offenders currently in prison or jail, federal, state and local governments would save $16.9 billion. That figure represents 22.8 percent of the $75 billion spent on corrections in 2008, the majority of which went to incarceration.

Numerically, the proposal would reduce the total prison and jail population (2,304,115) by 712,119, or 31 percent. The reductions would save the federal government around $2.1 billion (the feds have many fewer prisoners), state governments (who oversee the most prisoners) $7.6 billion, and local governments $7.2 billion.

The study reminds us of a few alarming facts about how the prison population has exploded in recent decades.

— At 753 per 100,000 population, the U.S. has by far the highest incarceration rate of any member country of the Organization for Economic Cooperation and Development. America locks up more of its citizens than Iceland, Japan, Denmark, Finland, Norway, Sweden, Switzerland, Ireland, Germany and Italy combined.

— Since 1980, rates of people locked up in America have skyrocketed: 220 per 100,000 in 1980; 458 in 1990; 683 in 2000, to 753 in 2008.

— Since 1980, America’s prison population has increased by 350 percent, while the overall population has only gone up 33 percent.

— Crime has not increased at anywhere near the same rate to justify the booming prison and jail population. In fact, it has been decreasing steadily since its peak in 1992. If the rate of people incarcerated corresponded with crime rates (using the 220 per 100,000 in 1980 as the starting point), then the ratio would have been highest at 317 in 1992, and by 2008 would have gone down to around 227.

It’s not hard to figure out, according to the study’s authors, why the prison and jail population has grown so explosively:

Stricter sentencing policies, particularly for drug-related offenses, rather than rising crime, are the main culprit behind skyrocketing incarceration rates. The last three decades have seen the implementation of new “tough on crime” policies such as three-strikes laws, truth in sentencing laws, and mandatory minimums. These laws have led to a significant increase in the number people who are incarcerated for non-violent offenses. Arrests and convictions for drug offenses have increased dramatically over the last three decades, with non-violent drug offenders now accounting for about one-fourth of all offenders behind bars (see Table 3), up from less than 10 percent in 1980. Additionally, during this period, the criminal justice system has moved away from the use of probation and parole. As a result, convicted criminals today are much more likely than in the past to be sentenced to prison or jail, instead of probation, and to serve longer terms, with less chance of being released on parole.

While the increase in incarceration is better explained by a shift to harsher sentencing policy than by an explosion in crime, can the case be made that higher levels of incarceration have helped to reduce crime? In a recent review of the extensive research on the relationship between incarceration and crime, Don Stemen, of the Vera Institute of Justice, concludes: “The most sophisticated analyses generally agree that increased incarceration rates have some effect on reducing crime, but the scope of that impact is limited: a 10 percent increase in incarceration is associated with a 2 to 4 percent drop in crime. Moreover, analysts are nearly unanimous in their conclusion that continued growth in incarceration will prevent considerably fewer, if any, crimes than past increases did and will cost taxpayers substantially more to achieve.”

Thus, the available evidence suggests that the higher rates of incarceration have made some contribution to lowering the crime rate, either by acting as a deterrent or by warehousing offenders during the ages in their lives when they are most likely to commit crimes. But, the impact of incarceration on crime rates is surprisingly small, and must be weighed against both its high monetary costs to government budgets and its high social costs to prisoners, their families, and their communities.

However, there is at least one small indication that governments may be catching on that there may be benefits, financial and otherwise, to having smaller prison and jail populations. According to this study by the U.S. Department of Justice’s Bureau of Justice Statistics, the number of total prisoners in America’s jails at mid-year 2009 was down from the previous year, the first time the total has decreased since 2000.